Tange v New South Wales Fair Trading
[2013] NSWADT 201
•28 June 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Tange v NSW Fair Trading [2013] NSWADT 201 Hearing dates: 11 June 2013; 28 June 2013 Decision date: 28 June 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is set aside. In its place, the decision is made that the licence is granted.
Catchwords: Home Building Act - contractor licence - relevant industry experience - wide range of building construction work - licence granted Legislation Cited: Administrative Decisions Tribunal Act 1997
Home Building Act 1989
Home Building Regulation 2004Cases Cited: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. Category: Principal judgment Parties: Drew Lloyd Tange (Applicant)
NSW Fair Trading (Respondent)Representation: Ms R Oliver agent for the Applicant
Ms B Lu for the Respondent
File Number(s): 133020
reasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application by Drew Tange ("the Applicant") for review of a determination by a delegate of the Commissioner for Fair Trading. The delegate determined to refuse the Applicant's application for a contractor licence under the Home Building Act 1989 ("the Act"). That determination was affirmed on internal review.
The refusal was made on the basis that the Applicant did not have sufficient experience to meet the requirements of the Act.
Background
The background to the application is not in dispute. It is set out in the reasons provided for the internal review determination in the following terms:
1) On 21 August 2012, Drew Tange (The applicant') lodged an application with Fair Trading for an individual contractor licence for the category of general building work.
2) In support of the application the applicant supplied the following relevant information with the lodged application form:
i) a certified copy of BCG30203 Certificate III in Carpentry from TAFE NSW, dated 13 December 2010;
ii) a certified copy of 90944NSW Certificate IV in Building Studies, Residential from TAFE NSW, dated December 2008;
iii) a certified copy of a Transcript of Academic Record of the units of competency completed from 90945NSW Diploma of Building Studies from TAFE NSW dated 8 July 2009;
iv) a reference on a Alvaro Bros letterhead signed and dated 30 June 2011 by Antonia Kralj, Manager;
v) a 'Referee Statement' form from Domenico Alvaro, signed and dated 18 July 2012;
vi) a 'Referee Statement' form from Andrew O'Neill, signed and dated 13 August 2012;
vii) a 'Referee Statement' form from Mark Preston, signed and dated 9 July 2012;
viii) a 'Referee Statement' form from Luigi Genova, signed and dated 17 August 2012.
3) A file note by a Fair Trading Officer, dated 21 September 2012, records an account of a telephone conversation with the applicant's referee Luigi Genova.
4) A file note by a Fair Trading Officer, dated 26 September 2012, records an account of a telephone conversation with the applicant's referee Andrew O'Neill.
Refusal of application
5) On 2 October 2012, Fair Trading forwarded to the applicant by post, a notice of determination advising that the application for an individual contractor licence for building had been refused as the applicant had not verified he had attained the required two years relevant industry experience in a wide range of building construction work. The reasons stated for the refusal decision were as follows:
- the referee Luigi Genova referred to work as a carpenter and leading hand;
- the referee Andrew O'Neill stated the work was sub contract carpentry;
- the referee Domineco Alvaro stated the work was sub contract carpentry;
- the referee Mark Preston was not an acceptable referee;
- the referee Andrew Parkinson did not complete a Referee Statement form and his reference referred to labouring work only.
Request for an internal review
6) On 29 October 2012, Fair Trading received a request for an internal review of the refusal decision from the applicant. To support the internal review request the applicant submitted a letter in which he provided the following to support the internal review:
i) he claimed referees Andrew O'Neill and Domenico Alvaro provided false and misleading information regarding the extent of his experience;
ii) a resume of work undertaken for Andrew O'Neill, On Constructions Pty Ltd;
iii) various emails which are claimed as evidence of his work responsibilities with On Constructions Pty Ltd;
iv) a resume of work undertaken for Domenico Alvaro, Alvaro Bros;
v) a Referee Statement form from Greg Anderson signed and dated 13 October 2012;
vi) a reference on a Greg Alderson Constructions letterhead signed and dated 13 October 2012 by Greg Alderson;
vii) a Referee Statement form from Andrew Parkinson signed and dated 15 October 2012;
viii) a reference on an Andrew Parkinson letterhead signed and dated 15 October by Andrew Parkinson.
The applicable qualification and experience requirements
The Act is concerned with the regulation of the home building industry in New South Wales. The Act also sets out the licensing requirements and the powers of the Director General and NSW Fair Trading ("the Respondent").
Section 19(1) of the Act provides that the Respondent may grant contractor licences for the purposes of this Act.
Section 20(3)(a) of the Act specifies that the Respondent must reject an application for a licence if the Respondent is not satisfied that any requirement would be met were the licence to be issued.
The Respondent has set standards and other requirements that the Applicant must meet before the licence can be issued. The standards are described in an Instrument dated 26 March 2012 ("the Instrument").
Section 20(5) of the Act provides that a decision of the Respondent relating to determining standards or other requirements under section 20(2) cannot be reviewed by this Tribunal in an application for review made under the Act or any other Act.
Clause 26(1)(b)(i) of the Home Building Regulation 2004 ("the Regulation") specifies that before a contractor licence is issued, the Respondent must be satisfied that the applicant, if also applying for an endorsement of the contractor licence to show that it is the equivalent of a supervisor certificate, amongst other criteria, complies with the requirements prescribed by clause 28(1)
Clause 28(1)(b) of the Regulation specifies that, before a certificate is issued, the Respondent must be satisfied that the applicant has had experience of such a kind and for such a period, as the Respondent considers would enable the applicant to do, or to supervise, the work for which the certificate is required.
The Respondent has concluded that the Applicant has satisfied the approved qualifications requirements for a building licence. The issue in dispute concerns his experience.
The experience requirement for a building licence as 'at least two years relevant industry experience in a wide range of building construction work. The relevant 'experience' is defined in the Instrument as:
"experience gained by the applicant as a bona fide employee who has been paid during the relevant period of employment in accordance with an award or enterprise agreement but excludes experience gained as an employee of:
(a) the holder of an Owner Builder Permit; or
(b) a company wholly owned by an individual or individuals being or including the applicant ..."
The delegate who undertook the internal review considered the various references provided on behalf of the Applicant and concluded:
The reviewer has considered all of the relevant information which has been provided by the applicant to support the requirement of two years relevant industry experience in a wide range of building construction work.
The standard requires an applicant to verify experience gained by working with recognised industry providers of residential buildings. Accepted experience is that in which the applicant personally undergoes the experience by observing and encountering the industry.
Therefore to be acceptable to provide a reference for building experience a referee has to be either the holder of an individual contractor licence or qualified supervisor certificate for the category of building or a registered architect.
Whilst the applicant has provided references from acceptable individuals it has been concluded these have not verified the experience required either in the extent of construction experience or the period of time required for the issue of the authority.
The application
The Applicant contends that he has worked in the building industry for over 10 years and has provided references that show he has a wide range of experience in the building industry over a period of 44 months. The Respondent is not satisfied that the Applicant has sufficient experience or that it is in a wide range of building construction work.
The matter came before me for hearing on 11 June 2013. On that occasion I heard evidence as to the work that the Applicant had undertaken and it became apparent that the Applicant had worked as a subcontractor and not only as an employee. The issue arose as to whether work performed as a subcontractor could fall within the definition of 'experience' contained within the Instrument.
I was satisfied that if work performed as a subcontractor falls within the definition then the Applicant had two years relevant industry experience. I determined to remit the matter to the Respondent for reconsideration of the issue. The matter was adjourned to 28 June 2013 so that the Respondent could advise the Tribunal of its position on this issue.
The Respondent subsequently submitted that experience gained by the Applicant as a subcontractor falls within the definition of experience.
Nevertheless, the Respondent was not satisfied that the Applicant's experience satisfies the definition of a wide range of building construction work.
On 28 June 2013 I determined that I was satisfied that the Applicant had two years relevant industry experience in a wide range of building construction work. I therefore ordered that the licence was to be granted.
The Respondent has requested written reasons for the decision pursuant to section 89 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). These reasons are provided in response to that request.
The Respondent's case
The Respondent has conceded that the Applicant has some fifteen months relevant experience but contends that the range of his experience is insufficient to meet the definition of a wide range of building construction work.
Ms Lu submitted that a wide range of building construction work may include but is not limited to:
"experience that demonstrates the ability or capacity to competently project manage residential building work in accordance with the Building Code of Australia, including dealing effectively with sub-contractors, consumers and other parties."
Ms Lu further submitted that a wide range of building construction work may also include:
a. Applying building codes and standards to the construction process in accordance with the Building Code of Australia.
b. Dealing effectively with Sub-contractors, consumers and other parties
c. Reading and interpreting plans and specifications
d. Planning building or construction projects and work
e. Organising site surveys and set-out procedures to building and construction projects.
f. Applying structural principals to residential constructions
g. Conducting on-site supervision of building and Construction projects
h. Applying legal requirements to building and construction projects
i. Managing occupational health and safety in a building and construction workplace.
Ms Lu relies on a number of dictionary definitions in support of her submission. She notes that the Macquarie Dictionary defines "wide" as:
Wide
Adj 1. having considerable or great extent from side to side; broad; not narrow.
2. having a certain or specified extent from side to side.
3. of great horizontal extent; extensive; vast; spacious.
4. of great range or scope; embracing a great number or variety of subjects, cases, etc.
5. open to the full or a great extent; expanded; distended,
6. full, ample, or roomy, as clothing.
The Macquarie Dictionary defines "building" as
Building
noun
1. a substantial structure with a roof and walls, as a shed, house, department store, etc.
2. the act, business, or art of constructing houses, etc.
The Macquarie Dictionary defines "construction" as;
Construction
noun
1. the act or art of constructing.
2. the way in which a thing is constructed; structure. 3, that which is constructed; a structure.
By reference to these definitions she submitted that the term "wide range of building construction work" means having great range or scope in the art of constructing houses and may include the type of work described above.
Ms Lu set out the Respondent's position in relation to the Applicant's experience in her written submissions. The Respondent accepted that the Applicant had gained seven and a half months experience with his referee Andrew O'Neill and a further seven and a half months experience with Luigi Genova.
Ms Lu submitted that the Respondent was generous in allowing that much credit for the work that the Applicant had performed with those referees. This submission was based on the references in which Andrew O'Neil had stated that only 90% of the experience was in relation to a residential construction project and Luigi Genova had stated that 50% of the work was trade work and 50% of the work was supervisory work.
The Respondent did not accept that the Applicant had gained any relevant experience with the other nominated referees.
The Applicant worked as an employee with Andrew Parkinson. He worked as a sub-contractor for Greg Alderson, Ben Matthews and Matthew Jackson and other referees.
The Respondent did not accept that work done with Mark Preston was relevant experience because Mark Preston does not have a builder's licence and so he is not a suitable referee.
The Respondent did not accept that the Applicant had gained any relevant experience with Greg Alderson because most of the experience was carpentry.
Andrew Parkinson gave evidence at the hearing that the Applicant constructed a new addition to an existing home ("the Bradbury project"). The Bradbury project involved 30 square metres and consisted of a bathroom, laundry and lounge room and external wooden stairs.
Mr Paul Dengate, an investigator with the Respondent appeared and gave evidence in relation to the Bradbury project. He had no knowledge of the site and his evidence was limited to an assessment of the work involved based on the documents provided to him. He agreed that the project could possibly require a period of five months from the commencement of demolition to completion.
Ms Lu submitted that the only new construction that the Applicant has built was the Bradbury project. She submitted that the Bradbury project was a small project. He has not constructed a house from start to finish. She argued that the grant of a builder's licence would represent to the public that the Applicant has the necessary skills, knowledge and ability to construct a house from start to finish and that is one thing that is missing from the Applicant's experience.
Ms Lu submitted that the Act is a consumer protection Act. It's about protecting owners and purchasers of a dwelling. Given that the Applicant has not constructed a house from start to finish, the Respondent cannot be confident that he is able to do so and members of the public cannot be confident that he is able to do so. Therefore the application ought to be dismissed and that the decision of the Respondent ought to be affirmed.
The Applicant's case
Ms Oliver appeared on behalf of the Applicant and provided submissions on his behalf. In addition to the material provided to the Respondent in support of the licence application, the Applicant also relied on evidence given by witnesses at the hearing.
Ben Matthews gave evidence that the Applicant had worked with him recently for about a month. He observed that the Applicant performed a wide range of building work and is a capable builder.
Matthew Jackson gave evidence that the Applicant had worked with him for about two months. Mr Jackson observed that the Applicant preformed a wide range of building work and is a capable builder.
Andrew Parkinson gave evidence that the Applicant had worked with Vision Home Building for 6.5 months under Mr Parkinson's supervision and performed a wide range of building work. Vision specialised in home modifications to people with disabilities. The Bradbury project was for approximately five months - from August to December 2007. The work was structural and a development application was required for the modification to the house. The project involved demolition and construction and included the whole range of residential building works - demolition, footings, piers, brickwork, set out, floors, walls, ceilings, roof, bathroom, laundry, coordination of all trades and structural work.
Mr Parkinson's evidence was that the Applicant provided hands on assistance and project management on a number of projects and worked primarily on larger projects.
The Applicant contends that the work involved construction, alterations, addition and renovations and is relevant experience for the purposes of his application. He was gaining the skills required but was not an unskilled employee.
Greg Alderson gave evidence that the Applicant had worked with him for a total of about five months and had performed a wide range of building works. Mr Alderson also gave evidence that the Applicant had worked on a number of jobs in a supervisory capacity, as Mr Alderson was often not on site.
Ms Oliver submitted that other referees were unable to be contacted to give evidence at the hearing but noted that evidence was available that indicated that the Applicant had performed work that gave other relevant experience. She submitted that in each capacity the Applicant personally underwent the experience by encountering and observing the building industry and that it would be reasonable to consider some part of the time as experience towards obtaining a builder's licence.
She submitted that the evidence presented on behalf of the Applicant has shown that he has gained a wide range of building experience some of which is carpentry. In the circumstances he has satisfied the requirements of the Act and therefore the licence should be granted.
Consideration
Section 63 of the ADT Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
The Tribunal is able to take account of evidence that was not before the decision maker but is bound by the standards set in the Instrument.
Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
In this matter the only issues for consideration are whether the Applicant has shown that he has gained two years relevant industry experience and if so whether that experience is in a wide range of building' construction work.
As indicated above, the Respondent has only accepted the experience that the Applicant gained with Andrew O'Neill and Luigi Genova. I do not agree with the Respondent's view that the other experience cannot be taken into account.
Mr Dengate's evidence in regard to the Bradbury project was of little assistance as he was not aware of the site and therefore could not comment usefully on the extent of the work at the site.
I have set out above a rough estimate of the time that the Applicant has worked with the referees who gave evidence before the Tribunal. In my view, there is sufficient evidence to establish that the Applicant has obtained at least gained two years relevant industry experience.
In the circumstances I do not need to consider whether it is necessary that a suitable referee holds a builder's licence or that only experience in residential building work can be considered as relevant experience.
Of greater concern is the issue of the range of the Applicant's experience. In this regard it is my view that there is some merit in the Respondent's argument that the Applicant's experience is too narrow. It seems that much of his experience has been in carpentry work.
It is not in dispute that the Applicant has not constructed a house from start to finish. However, in my view that is not conclusive of the issue. As noted, the Act is a consumer protection Act. Skill, knowledge and ability are the significant factors.
Most of the witnesses gave evidence that the Applicant has gained a wide range of building experience. In the circumstances, I accept that evidence. I am satisfied that on balance he has met the criteria. That being the case, he is entitled to be granted the licence. In my view, it does not make any difference to the outcome that the Applicant has only barely met the criteria,
On the evidence before me, the correct and preferable decision to set aside the Respondent's decision and in its place to make the decision that the licence is granted.
Order
The decision under review is set aside. In its place, the decision is made that the licence is granted.
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Decision last updated: 09 September 2013
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